TROUBLESOME BUNDLES YET AGAIN: MR JUSTICE EDER SPEAKS OUT ON WASTEFUL BUNDLES IN THE COMMERCIAL COURT

The question of bundles was raised by Mr Justice Eder in Taberna Europe -v- Selskabet [2015] EWHC 871 (Comm).  This is hardly a new complaint and appears across the board in all jurisdictions. (There are now 16 posts on this blog just about bundles [see below]. The post on bundles “Sedley’s Laws” remains the most popular post on this blog).

THE JUDGMENT

In giving judgment the judge commented on the state of the bundles:-

The evidence

  1. In what has sadly become a matter of standard practice, there was a large number of bundles containing hard copies of documents – many of which were never referred to during the trial. In large-scale modern commercial litigation, I regard this as unacceptable. It is a waste of time, money and resources – both natural and human and, in my view, it is a practice which should be abandoned. I readily accept that it is often impossible to say with certainty that particular documents will or may not have to be referred to in the course of the trial. But, in my view, there is no reason in this modern electronic age why documents which might be described – at best – as “peripheral” and which are unlikely to be referred to need to be reproduced in hard copy on a “just-in-case” basis. In most cases, it seems that with good pre-trial case management by the parties’ representatives, it would normally be sufficient for such documents to be available, if necessary, in soft-copy format – although, if needed, hard copies could no doubt be produced relatively quickly. At this stage, I refrain from making any further comment other than to note that it was agreed that the contents of all these documents were admissible in evidence as to the truth of their contents. Even more sadly, there was no satisfactory Core Bundle. There were, in fact, two bundles that were said to constitute the Core Bundle as required by the Commercial Court Guide. First, there was a bundle (D1) containing Roskilde’s financial documents including various formal financial reports. This was arranged very helpfully. Second, there was another bundle (D2) containing various contemporary documents including emails and other correspondence and reports. Unfortunately, this was something of a jumble. It was (often) not in chronological order (as it should have been) and the pagination was unsatisfactory. This was not only confusing but caused real difficulty from time to time in the course of the trial and in understanding the proper sequence of events. Insofar as may be necessary, I will consider separately who bears responsibility for this state of affairs and what, if any, special order as to costs should be made.

RELATED POSTS

One comment

  1. Litigators now have access to online tools to build trial bundles. The tools allow a small number of documents to be selected as core (for printing) and the remainder are available electronically.

    This meets three requirements:

    1. The requirement by the judge to have a small and focussed paper bundle
    2. The requirement by some litigators to have a large number of documents “at the ready”.
    3. The requirement to agree the documents between the parties through the disclosure process.

    The advice for the modern age is to prepare large trial bundles electronically, disclose and agree content electronically and then print a small core bundle.

    The advertisement connected to this comment is to use the CaseLines system to do this …

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